Workers' Compensation - Tribunal jurisdiction - binaural hearing loss - tinnitus - lodging compensation claim more than six months after onset of injury - prejudice to the respondent - unavailability of medical records - unavailability of witnesses - lack of awareness of claimed condition - exposure to high noise levels - Snowy Mountains Hydro Electricity Authority - industrial deafness - financial assistance for the supply of hearing aids - transitional provisions - compensation for medical expenses - other reasonable cause

Commonwealth Employee's Compensation Act 1930, s 16

Compensation (Commonwealth Government Employees Act 1971, ss 53, 54

Safety, Rehabilitation and Compensation Act 1988, ss 7(4), 123A, 124(1), (1A), (2)(b), (c), (3)(b), (4), (8), (9)(b), (c), (10)(b), (c), 126(1), (2)

Re Otis and Telstra Corporation [1999] AATA 668

Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403

Re Muras and Department of Defence (AAT 13196, 21 August 1998)

Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416

Comcare Australia v Maguire (1996) 68 FCR 329

Re Quinn and Comcare [1999] AATA 607

Re Vickery and Commonwealth of Australia (AAT 2251, 26 July 1985)

Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191

Banks v Comcare [1996] FCA 382

Re Hanson and Comcare (1996) 41 ALD 639

1. On 4 January 1999 Comcare ("the Respondent") received a claim for rehabilitation and compensation from Andrew Buttfield ("the Applicant") in respect of binaural hearing loss (T5). He stated on the form that he had constant tinnitus and had difficulty hearing "when there is background noise". He attributed the condition to his periodic employment with the Snowy Mountains Hydro Electricity Authority ("the Authority"), where he was exposed to explosives and air drilling.

2. On 23 February 1999 the Respondent notified the Applicant that the claim in respect of binaural hearing loss had been disallowed (T8). The claim was refused because notice of the claimed injury had been served on the Respondent some 38 years after the Applicant had ended his employment with the Authority. Pursuant to s 16 of the Commonwealth Employee's Compensation Act 1930 ("the 1930 Act"), the relevant legislation in this matter, any application for compensation should be served within six months of the date of injury, as soon as practicable after the occurrence of the injury or as soon as possible after the employee becomes aware of the injury. The Respondent noted the difficulties in locating witnesses with knowledge of the working conditions between 1958 and 1961 and observed that such persons, even if available, might have difficulty in remembering specific details about the Applicant's employment circumstances. The Respondent also noted the lack of medical records which would indicate the state of the Applicant's hearing during the period in question.

3. On 8 March 1999 the Applicant requested a reconsideration of the above decision (T9).

4. On 15 March 1999 the Applicant wrote to the Respondent, at the latter's request, stating that a reconsideration of the decision was warranted because the Respondent had not taken into account the gradual onset of the Applicant's condition (T13). The Applicant further said that he had been unaware of the condition for many years. He said that detailed employment records were not required to assess the application because a medical officer, taking a history and conducting tests, could comment satisfactorily on the condition and its cause.

5. On 10 April 1999 the Respondent affirmed the decision of 23 February 1999 (T14). The decision noted that the Applicant worked for the Authority for 15 weeks in total between 1958 and 1961 and that Dr Scoppa, ear nose and throat surgeon, considered that most, if not all, of the Applicant's industrial deafness probably came about because of his employment with the Authority. Irrespective of this medical opinion, the Respondent relied on s 16 of the 1930 Act, stating that the claim did not fall within the six-month time limit as stipulated.

6. The Respondent further noted that the Applicant did not claim compensation after hearing tests in 1963, 1965 or 1973, all of which appeared to disclose hearing loss from a compensable injury. The relevant audiograms had not been provided to the Respondent and it was claimed that prejudice had arisen in that the Respondent was unlikely to be able to recover these documents. In the event that the audiograms did reveal an injury, there was no "mistake or other reasonable cause" for failing to make the claim within the six-month period stipulated in the 1930 Act. The Respondent also examined the Applicant's employment history, stating that the hearing loss was allegedly sustained from 22 to 33 days of noise exposure in 1960 to 1961. The Respondent further noted that the Applicant was employed by Noyes Brothers between 1963 and 1970, where he was occasionally exposed to noise from turbines and steam safety valves, and by the Air Force for "a few months" where he was exposed to aircraft engine noise while repairing gas turbines.

7. On 8 November 1999, Mr Gavin Stuart, solicitor for the Respondent, provided an affidavit stating that he had been unable to obtain the Applicant's employment records and any medical records from Dr Patricia Davies (Exhibit R2). He stated that because of this lack of documentation the Respondent was prejudiced in that it was unable to investigate the circumstances of the Applicant's position. Attached to the affidavit were a series of documents from the Applicant's former employers stating that they no longer had the Applicant's employment records. The Applicant did however provide a resume that provided a summary of his work experience.

8. On 16 December 1999 the Applicant provided an affidavit (Exhibit A2) stating that he was employed by the Authority between 1958 and 1960 and was exposed to tunnelling operations and high noise levels from drilling equipment. He further stated that he had no recollection of other high noise exposure in his other occupations.

9. On 24 March 2000 the Respondent's solicitor provided an affidavit with annexures (Exhibit R3). This document included copies of correspondence from the Respondent requesting particulars of the Applicant's treating doctors. The Applicant stated that the request to provide details of treating doctors over a period of almost 60 years was not "proper".

10. On 9 June 2000 the Applicant provided another affidavit (Exhibit A3), stating that it was Dr Scoppa who first diagnosed his industrial deafness and attributed the condition to his employment with the Authority. He also stated that the first time he sought treatment for his hearing loss was in August 1995. The Applicant had his hearing tested again in August 1999.

11. The relevant legislation in this matter is as follows:

1. section 16 of the Commonwealth Employee's Compensation Act 1930 ("the 1930 Act");

2. sections 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act");

3. sections 7(4), 123A, 124(1), (1A), (2)(b), (c), (3)(b), (4), (8), (9)(b), (c), (10)(b), (c), 126(1), (2) of the Safety, Rehabilitation and Compensation Act 1988 ("the 1988 Act").

"16. - (1) The Commissioner shall not admit a claim for compensation under this Act for an injury unless notice of the accident has been served upon him as soon as practicable after it has happened, and before the employee has voluntarily left the employment of the Commonwealth, and unless the claim for compensation has been made -

within six months from the occurrence of the accident; or

in the case of death - within six months after advice of the death has been received by the claimant:

the want of or any defect or inaccuracy in the notice shall not prevent consideration of the claim by the Commissioner if he finds that the Commonwealth is not prejudiced by the want, defect or inaccuracy, or that the want, defect or inaccuracy was occasioned by mistake, absence from Australia or other reasonable cause; and

the failure to make a claim within the period above specified shall not prevent consideration of the claim by the Commissioner if he finds that the failure was occasioned by mistake, absence from Australia or other reasonable cause.

(2.) Notice in respect of any injury to which this Act applies shall contain the name and address of the person injured, and a statement in ordinary language of the cause of the injury and the date at which the accident happened.

(3.) The notice may be served by sending it by post in a registered letter properly addressed to the Permanent Head or Chief Officer of the Department or authority in or by which the employee was employed at the time of the accident, or by delivering it at the head office of the Department or authority or to the officer in charge of the work on which the employee was so employed, or in any other prescribed manner.

(4.) In the application of this section, in accordance with section ten, and sub-section (2.) of section four, of this Act, in relation to a claim in respect of an employee who is suffering from a disease or whose death has been caused by a disease -

notice of the accident shall be deemed to have been served in accordance with the provisions of sub-section (1.) of this section if notice of the contracting of the disease was served on the Commissioner -

in the case of a claim arising out of death of the employee caused by the disease - as soon as practicable after his death; or

in any other case - as soon as practicable after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, as soon as practicable after his death;

a claim for compensation shall be deemed to have been made within the period required by sub-section (1.) of this section if the claim was made -

in the case of a claim arising out of the death of the employee caused by the disease - within six months after advice of the death was received by the claimant; or

in any other case - within six months after the employee first became aware that he was suffering from the disease or, if he died without having become so aware, within six months after his death;

a notice shall, for the purposes of sub-section (2.) of this section, be deemed to contain the date at which the accident happened if it specified the date at which, or period during which, the employee contracted the disease; and

a notice shall be deemed to have been duly served in accordance with the last preceding sub-section if -

it was sent in the manner specified in that sub-section to the Permanent Head or Chief Officer of the Department or authority by which the employee was employed in employment to the nature of which the disease was due or, if he was so employed in more than one Department or authority, to the Permanent Head or Chief Officer of the Department or authority by which he was last so employed;

it was delivered at the head office of the Department or authority by which he was so employed or last so employed, as the case requires; or

"53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-

(a) as soon as practicable after the occurrence of the injury;

(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or

(c) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth-

(a) as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(b) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(3) This Act does not apply in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by an employee, being a loss or damage that arose in circumstances referred to in section 28, unless notice in writing of the accident that resulted in the loss or damage was served, as prescribed, on the Commonwealth-

(a) as soon as practicable after the occurrence of the accident;

(b) if the employee was not, immediately after the accident, aware that the accident had resulted in the loss or damage-as soon as practicable after he became so aware; or

(c) if the employee died without having become so aware or before it was practicable to serve such a notice-as soon as practicable after his death.

(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;

(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,

the notice shall be deemed to have been served in accordance with that sub-section.

54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-

(a) in the case of a claim in relation to an injury to the claimant-

(i) the period of six months commencing on the day of the injury; or

(ii) if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;

(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the claimant, being a loss or damage that arose in circumstances referred to in section 28 of this Act-

(i) the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

(ii) if the claimant was not, immediately after the accident, aware that the accident had resulted in the loss or damage-the period of six months commencing on the day on which he became so aware.

(3) If the employee has died and the claimant is his legal personal representative making a claim in pursuance of sub-section (1) of section 55, the prescribed period for the purposes of sub-section (1) of this section is-

(a) in the case of a claim in relation to an injury to the employee-

(i) the period of six months commencing on the day of the injury; or

(ii) if the employee did not become aware before his death that he had sustained an injury-the period of six months commencing on the day on which the claimant became aware of the death of the employee;

(b) in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the employee-

(i) the period of six months commencing on the day on which the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or

(ii) if the employee did not become aware before his death that he had contracted a disease or suffered an aggravation, acceleration or recurrence of a disease-the period of six months commencing on the day on which the claimant became aware of the death of the employee; or

(c) in the case of a claim in relation to loss of, or damage to, an artificial limb or other artificial substitute, or a medical, surgical or other similar aid or appliance, used by the employee, being a loss or damage that arose in circumstances referred to in section 28 of this Act-

(i) the period of six months commencing on the day of the occurrence of the accident that resulted in the loss or damage; or

(ii) if the employee did not become aware before his death that the accident had resulted in the loss or damage-the period of six months commencing on the day on which the claimant became aware of the death of the employee.

(4) If the employee has died and the claimant is a dependant of the deceased employee claiming compensation in respect of his death, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the claimant became aware of the death of the employee.

(5) If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section(9), of section 37, or by virtue of section 44, the prescribed period for the purposes of sub-section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.

(a) a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;

(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,

the claim shall be deemed to have been served in accordance with that sub-section."

The 1988 Act, sections 7(4), 123A, 124(1), (1A), (2)(b), (c), (3)(b), (4), (8), (9)(b), (c), (10)(b), (c), 126(1), (2)

"Section 7 Provisions relating to diseases

(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

"Section 123A Injuries suffered before the commencing day

123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.

Section 124 Application of Act to pre-existing injuries

124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the injury, loss or damage was suffered; or

(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.

(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

(4) The amount of compensation (if any) that a person is, by virtue of this section, entitled to receive under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing day, shall be the same as the amount of the compensation that would have been payable to that person, if this Act had not been enacted, under:

(a) where the impairment or death occurred before the commencement of the 1930 Act-the 1912 Act;

(b) where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the impairment or death occurred; or

(c) in any other case-the 1971 Act as in force when the impairment or death occurred.

(8) A person is not entitled to compensation under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:

(a) an amount was paid in respect of that cost or expenditure under the 1912 Act, the 1930 Act or the 1971 Act; or

(b) an amount was not payable in respect of that cost or expenditure:

(i) where the liability for the cost arose, or the expenditure was incurred, before the commencement of 1930 Act-under the 1912 Act;

(ii) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-under the 1930 Act as in force when the liability arose or the expenditure was incurred; or

(iii) in any other case-under the 1971 Act as in force when the liability arose or the expenditure was incurred.

(b) where the liability arose, or the expenditure was incurred, after the commencement of the 1930 Act but before the commencement of the 1971 Act-the 1930 Act as in force when the liability arose or the expenditure was incurred; or

(c) in any other case-the 1971 Act as in force when the liability arose or the expenditure was incurred.

(b) a claim for compensation by a person under the 1930 Act, in respect of an injury suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act, was not admissible because of section 16 of the 1930 Act; or

(c) a claim for compensation by a person under the 1971 Act, in respect of an injury suffered after the commencement of the 1971 Act but before 1 July 1986, was not admissible because of section 54 of the 1971 Act, as that section was in force before 1 July 1986;

that person is not entitled to compensation under this Act in

"Section 126 Notices, claims etc. under previous Acts

126. (1) A notice duly served before the commencing day under:

in relation to an accident or an injury, loss or damage suffered by an employee shall be taken to be a notice duly given to the relevant authority under section 53 of this Act in relation to the accident, injury, loss or damage.

(2) A claim for compensation duly made before the commencing day under the 1971 Act shall be taken to be a claim for compensation duly made to the relevant authority under this Act.

12. Ms Sharpe and Mr Elliott, both of counsel, appeared on behalf of the Applicant and the Respondent, respectively. At the hearing the following material was taken into evidence:

Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 Exhibit TD1

Applicant's statement of issues dated 2 August 1999 Exhibit A1

Affidavit of Andrew Buttfield dated 16 December 1999 Exhibit A2

Affidavit of Andrew Buttfield dated 9 June 2000 Exhibit A3

Respondent's statement of issues dated 27 July 1999 Exhibit R1

Affidavit of Gavin Scott Stuart dated 8 November 1999 Exhibit R2

Affidavit of Gavin Scott Stuart dated 24 March 2000 Exhibit R3

13. Mr Buttfield was cross-examined by Mr Elliott. He said that he was first aware of hearing loss in about 1965. He saw Dr Patricia Davies at that time about a sinus infection. She had a hearing test performed. The Applicant cannot recall having complained about his hearing. Dr Davies told him that he was substantially damaged in the 4,000-cycle range.

14. The Applicant agreed that the full extent of his employment with the Authority is as set out in T3 and T4. From T3 the actual periods seem to have been 14 January to 11 February 1958, 8 January to 12 February 1960 and 21 December 1960 to 10 February 1961. The Applicant agreed that he was not exposed to loud noise for the whole of each period. He had to endure loud noise when underground, which was about 30% of the time in 1958 and 1961. The Applicant first associated his hearing loss with the Authority in 1965 when he was diagnosed by Dr Davies.

15. The Applicant has been aware of the availability of hearing aids since he was a teenager but he refrained from seeing a doctor about getting a hearing aid until 1995. Until then he had decided to tolerate the difficulties he had because he did not want to admit that he was deaf, or going deaf. He saw a Dr Benjamin in 1990. Dr Benjamin was the only doctor he saw on this matter since Dr Davis. He had no discussion with Dr Benjamin about hearing aids. Dr Benjamin tested his hearing. He was sent to see Dr Scoppa who provided a report dated 16 October 1995 (T4). Mr Russell, a supplier of hearing aids, had fitted Mr Buttfield for a hearing aid in October 1995.

16. Mr Buttfield rejected the suggestion that he had not notified Comcare or the Authority of these developments in 1995. He had approached his solicitors who traced his former employers over a two-year period. He did not claim against Comcare at that time because of advice from his solicitor. Mr Buttfield agreed that he was aware of the possibility of making a claim since 1965. Counsel observed that this was somewhat at odds with a statement made by his solicitors in the letter seeking a reconsideration. In that letter the solicitors wrote, "The applicant was, for many years, ignorant of the compensable injury and after becoming aware of the condition and the causative link with his employment duties a claim was lodged." The Applicant stated that he started action towards claiming compensation in 1995 because compensation coverage would be useful in obtaining a hearing aid.

17. Dr J Scoppa reported to Mr Buttfield's solicitors on 16 October 1995 (T4). He described the Applicant's difficulties hearing when there is background noise, such as at cocktail parties. He also has tinnitus.

18. The Applicant's employment history is largely marketing and sales and other reasonably quiet work. The exceptions were 10 years at Noyes Brothers where his duties required him to visit power stations about 30% of the time. At the power stations there could be noise from turbines and steam safety valves. Most of the time, however, he was not near these sources of noise.

19. While working for the Authority, in two of the three years, he was in survey gangs which were exposed to a great deal of noise. "He worked underground as well as on the surface. He had been exposed to noise from explosives, air drills and heavy equipment associated with the Snowy Mountains Scheme. In particular he remembers a rig with 48 pneumatic drills, which was operating against a rock face. He said that this was incredibly noisy. He said that he was exposed to noise during this period of time approximately 2 or 3 days each week. Ear protection had not been provided. He also recalls one particular explosion underground that was extremely loud."

20. Dr Scoppa noted that Dr Davies had performed audiometric tests in 1965 and 1973 and had discovered some degree of hearing loss. On 12 October 1995 a fresh set of tests was completed (T4) which showed a bilateral high tone sensorineural hearing loss consistent with industrial deafness. Mr Buttfield had a sensorineural hearing loss of 17.9% for the left ear and 10.6% for the right ear. In his "opinion" Dr Scoppa writes:

"Mr Buttfield's tinnitus and sensorineural hearing loss have probably resulted from occupational noise exposure. His tinnitus and sensorineural hearing loss is permanent but can be helped by the use of hearing aids. I note that Mr Buttfield has been using a hearing aid for the past few months.

"There is no doubt in my mind that Mr Buttfield has industrial deafness. It is very difficult to attribute the development of his industrial deafness to his various occupations but it would appear from the history that he gives that his work with the Snowy Mountains Authority would have at least caused some degree of noise induced hearing loss. His work with Noyes Brothers may have aggravated this loss and also his noise exposure during service in the Air Force may have also played a part. Certainly most if not all of his industrial deafness probably came about following his noise exposure whilst he was employed with the Snowy Mountains Authority."

21. Ms Sharpe stressed that Mr Buttfield first sought treatment for his hearing loss in August 1995 when he saw Mr Russell (Exhibit A3). The purpose in claiming compensation is for Mr Buttfield to receive financial assistance for the supply to him of hearing aids.

22. Ms Sharpe submitted that this was properly a claim under the 1988 Act rather than the 1930 Act. She referred to s 7(4) of the 1988 Act which provides that an employee is to "be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when (a) the employee first sought medical treatment for the disease or aggravation; ...".

23. Section 7(4)(b) provides in the alternative that the day can also be the day when "the disease or aggravation first resulted in the incapacity for work, or impairment of the employee". Ms Sharpe submitted that in Mr Buttfield's case the scale of the hearing loss was not sufficient, prior to 1995, to amount to an impairment. Mr Buttfield had functioned satisfactorily until 1995 when his problem with background noise prompted him to approach Mr Russell.

24. The provision of hearing aids is a "medical treatment" within paragraph (f) of the definition in s 4(1) of the 1988 Act for the purposes of compensation payments under s 16 of the 1988 Act. It would be "the supply, ... of ... a medical, surgical or other similar aid or appliance".

25. Ms Sharpe referred to the Tribunal decision in Re Otis and Telstra Corporation [1999] AATA 668. The facts of that case bear some resemblance to the present case. The applicant in that case had worked in a number of jobs where noise was not a prominent concern. However, between 1957 or 1958 and 1973 he worked for Chubb, the safe making firm, where conditions were noisy and he had no hearing protection. In 1973 he changed jobs and started work at the GPO in Martin Place. His work involved the laying of cables. This in turn involved the regular but not continuous use of jackhammers and a vibrating machine, both of which were noisy. He worked in busy streets in Balmain where the traffic noise was heavy. He had no hearing protection. He did this work until 1975. He first sought medical assistance for his hearing problem when he attended Canterbury Hospital in 1990 or 1991 for tests. He complained of a buzzing noise in his ear. He learned that he had damaged his eardrums. His hearing had become unsatisfactory. The Tribunal, Deputy President McMahon and Dr Lynch, said:

"33. In our view, a proper analysis of the facts of this case does not lead one to the transitional provisions. Notwithstanding the fact that the impairment may have existed prior to the commencement of the Act and, notwithstanding the fact that the claim was not submitted until 7 years after the commencement of the Act, it seems to us that a resolution of the claim is to be found in subsection 7(4) of that Act.

"34. Section 7 deals with diseases. Industrial deafness clearly falls within the definition of diseases and there was no controversy concerning this terminology. The section makes provision for circumstances that are peculiar to disease cases as distinct from injury cases. Included among these provisions are those to be found in subsection (4), which deal with latent disorders. The subsection is in the following terms:

"'(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

(a) the employee first sought medical treatment for the disease, or aggravation; or

(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;

"35. It will be noted that the subsection legislates not only for the purposes of part 1, where it is to be found, but also for the purposes of the whole of the Act. It sets a deemed commencement time. It fixes the date of a disease for legal purposes, whether or not from a medical point of view, the disease was previously in existence. From a legal point of view, claims under part II and particularly under sections 24 and 16, can be made in respect of conditions which the Act will treat as having arisen on the day when the employee first sought medical treatment for the disease or aggravation. There is no dispute between the parties that in the present case, that relevant date was in 1990 or 1991 (after the commencement of the Act) when the applicant attended at Canterbury Hospital.

"36. It seems to us, therefore, that the transitional provisions have no part to play in a proper analysis of the present facts. This is simply a disease claim under the Act, based upon a disease or an aggravation of a disease, deemed for the purpose of the 1988 Act to have occurred after the commencement of the Act.

"37. We were referred by counsel for the respondent to Re Wregg and Comcare (1991) 24 ALD 392 at 397. What we have concluded, it seems to us, is not in conflict with what was said by the Senior Member in that case. Mr Wregg had first sought medical treatment prior to the commencement of the Act. The facts in the two cases, therefore, are not comparable. We were also referred to Comcare v Bozicevic and others (1997) 74 FCR 260. The Court considered the effect of the transitional provisions on the facts as set out in the judgements of Foster and North JJ. However, their Honours do not appear to have adverted to the effect of subsection 7(4). The facts as recited in the judgements are not sufficient to determine whether that subsection would have been available to any of the respondents to that appeal.

"38. The purpose of subsection 7(4) is to deal with medical conditions that do not become apparent until some time after the initiating cause. An example would be melanoma occurring considerably later than prolonged exposure to sun. Another example would be, as here, the gradual progression of an impairment of deafness until associated tinnitus drives the sufferer to seek medical treatment for the whole condition. The subsection exists for the purpose of ensuring that applicants affected by conditions which have a long maturation period are not prejudiced compared with those who are immediately affected by traumas. Our decision that Mr Otis' claim falls within the terms of this subsection is, we believe, consistent with the purpose and intent of the subsection."

26. Ms Sharpe referred also to Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403. The employee was a member of the RAAF. He experienced right knee pain when jumping to the ground from the wing of a jet aircraft which he was refuelling. In the next year he experienced two other such incidents of knee pain. This led to surgery on his knee in 1957. In 1992 the employee had left the RAAF and worked in a management position in a private business when he again felt a sharp pain in his right knee. He had advanced osteoarthritis connected to the 1957 surgery. In 1995 the employee claimed compensation for the injury. The Tribunal held that the claim lodged in 1995 was a claim under the 1988 Act, not the 1930 Act. It was in respect of right knee injury suffered on 9 September 1992. It was not a claim in respect of the 1955-1956 injuries. The Tribunal held that the employee had given notice as required by s 53 of the 1988 Act in the form of his claim for compensation. The Tribunal held that the employee had not given notice "as soon as practicable", as s 53 requires. It found that this resulted from the employee's ignorance of the compensation process and his uncertainty about the diagnosis and aetiology of his right knee condition until these were clarified later by his medical practitioners. The Tribunal's findings were upheld by French J in the Federal Court as being open to the Tribunal on the evidence.

27. Ms Sharpe recognised that the Tribunal might find against the Applicant on the above submissions and addressed the 1930 Act. She referred to Re Muras and Department of Defence (AAT 13196, 21 August 1998), which she sought to distinguish.

28. In that case the employee was a member of the Royal Australian Navy ("RAN"). He was involved in a motor vehicle accident on 15 May 1965 on the way to the Navy base. He suffered serious orthopaedic injuries. He was hospitalised in Balmoral Naval Hospital for 46 days. He was discharged from the RAN in 1971 and was not told of any compensation rights during the discharge process. It was not until 27 September 1995 that the employee lodged a compensation claim. No other written notice of injury was given. The Tribunal found that the 1930 Act applied and had to be satisfied. It found that the Commonwealth had been prejudiced by the employee's failure to give notice of the accident. The Tribunal found that the employee's ignorance of the compensation system did not permit him to claim that he had failed to give the requisite notice through mistake or other reasonable cause. In paragraph 24 of the reasons for decision it is clear that the Tribunal was greatly influenced by the frank nature of the injury. It was not at all latent. The employee was unable to bring a claim. In the present case the injury was latent and of gradual onset and not apparent until 1995.

29. Mr Elliott argued that the starting point for assessing the compensation entitlements of a Commonwealth employee allegedly injured before 1 December 1988 (the date of commencement of the 1988 Act) is the transitional provisions in Part X of the 1988 Act. A precondition to a successful claim under the 1988 Act in respect of an earlier occurring injury is entitlement, in the Applicant's situation, under the 1930 Act. In Secretary of the Department of Defence as a Delegate of Comcare v Gorton [2000] FCA 416 the employee was a member of the RAN who contracted gonorrhoea on 26 February 1955. This led to gonococcal arthritis affecting his right foot, spine and right hip. The problem was delay on the part of the Navy in treating the condition. Mr Gorton did not lodge a compensation claim until 1994. The Federal Court held that Mr Gorton had to have a valid claim under the 1930 Act if he was to be able to claim under the 1988 Act. It was argued for the employee that the notification requirements in s 16 of the 1930 Act did not apply in 1955 to the contracting of a disease and that they applied only to injuries. In 1959 the 1930 Act had been amended so that s 16 was to apply to both injuries and diseases. The 1959 amendment applied to disease claims, including those related to diseases occurring before the commencement of the amendment. In paragraph 46 of the reasons for decision Hill J said:

"It is not in dispute that a claim for a disease contracted while the 1930 Act was in force, but made after 1988 was a claim made under the 1988 Act by force of s 124 of the 1988 Act. The starting point of a claim such as that of Mr Gorton is thus the transitional provisions of the 1988 Act: cf Associated Steamships Pty Ltd v Hore (1995) 61 FCR 506 at 512. For Mr Gorton to succeed in his claim for compensation he must thus show that he was entitled to compensation under the 1930 Act, as in force at the time his entitlement arose (here 1955) and that he was not disentitled to compensation under that Act. As the Tribunal put it, entitlement to compensation under the 1930 Act is "a pre-condition" to Mr Gorton's entitlement to compensation under the 1988 Act: Brennan v Comcare [1994] FCA 1147; (1994) 50 FCR 555."

30. A second case, Comcare Australia v Maguire (1996) 68 FCR 329 was also cited. The employee was in the Army in 1951 when he suffered a middle ear infection. He left the Army in 1957 to work in the building industry. In 1991 he claimed under the 1988 Act for hearing loss. The claim was rejected. He appealed to the Tribunal which applied the 1930 Act provisions to find in the employee's favour. The Federal Court held that s 16(4) did not apply to injuries sustained before its insertion in 1959.

31. Mr Elliott argued for the Respondent that the Applicant had seen Dr Davies in 1965 and 1973 and that his hearing problems were considered in those attendances. He submitted that the decision in the Otis case (supra) is misconceived in its emphasis on the date when medical treatment was first sought. The Applicant first sought medical treatment in 1965 and attended Dr Davies again in 1973 clearly in connection with his hearing. That attendance was for "medical treatment" in accordance with paragraph (a) of the definition in s 4(1) of the 1988 Act. Paragraph (a) describes medical treatment as "medical ... treatment by, or under the supervision of, a legally qualified medical practitioner".

32. Section 124(8) and (9) of the 1988 Act limits compensation for medical expenses to situations where compensation was payable to an applicant for medical expenses under the 1930 Act.

33. Mr Buttfield's claim, having been brought after 1959, must satisfy s 16 of the 1930 Act even though it is a disease claim. The Respondent argued that s 16(1) requires the Applicant to give notice "as soon as practicable" after becoming aware of the disease. After the Applicant was aware of all material factors concerning his disease he had an obligation to give notice reasonably promptly. If notice is not given promptly, when the employee is in a position to do so, then prima facie the matter is not admissible unless a proper explanation is forthcoming under the proviso to show that either the Commonwealth was not prejudiced or that there was a mistake, absence from Australia or other reasonable cause.

34. In the present case the Applicant appears to have been aware that he had a hearing problem in 1965 when he saw Dr Davies. It would appear from the clinical records of Dr Benjamin that in 1990 he considered his hearing loss was due to work for the Authority. He was certainly provided with an opinion to support this when Dr Scoppa wrote in October 1995 (T4). In 1995 the Applicant was aware that he might require hearing aids (Exhibit A2, paragraph 9). However, it was not until 8 July 1998 that the Applicant signed a compensation claim form and not until January 1999 that it was lodged (T5). There has been no explanation for these delays. Notice has not been given as soon as practicable.

35. The Commonwealth has been prejudiced by Mr Buttfield's failure to give notice. Exhibit R2 is an affidavit by Mr G S Stuart, a solicitor acting for the Respondent. In paragraph 15 he writes:

"The delay occasioned by the Applicant in notifying of the injury and lodging a claim for compensation in respect of the injury has prejudiced the Commonwealth, in that the Commonwealth has been unable to investigate the circumstances surrounding the applicant's position. Specifically:

without obtaining copies of employment records from all of the Applicant's employers since 1958 it is impossible to determine the extent of any contribution to the Applicant's binaural hearing loss from his employment with the Authority;

in being unable to obtain records from Dr Patricia Davies (or possibly Davey) and records of the Applicant's treating doctors, it is impossible to investigate the nature and extent of the Applicant's binaural hearing loss and the contribution to it by his employment with the Authority;

the Commonwealth has been unable to verify factual matters relating to the Applicant's claim including matters relating to the nature and extent of exposure to 'noisy' work duties;

the Applicant has known that there could be a potential relationship between his employment with the Authority and his binaural hearing loss for approximately 40 years and the Commonwealth did not have an opportunity to investigate the matters surrounding the Applicant's claim until July 1998."

36. As Mr Elliott said, the chances of any other person having a recollection of what the Applicant did at work are remote. A delay of 40 years involves significant prejudice. This is a similar period and raises some similar problems as arose in Re Quinn and Comcare [1999] AATA 607.

37. Even if the Commonwealth can show prejudice, s 16(1) Proviso (i) might still permit the Applicant to proceed if the want of notice was occasioned by mistake, absence from Australia or other reasonable cause. There is no evidence that the Applicant has operated under any mistake affecting his giving of notice since seeing Dr Benjamin in 1990 at which time he alleged a possible connection between the work he did for the Authority and his disease.

38. Another basis for want of notice from the proviso in s 16(1) could be the Applicant's absence from Australia. There is no evidence of such absence.

39. The final basis for excusing a want of provision of notice is "other reasonable cause". All that has been suggested in this regard is that Mr Buttfield did not know he needed a hearing aid until 1995. Mr Elliott said that this is inadequate as a cause and, in any event, it still took three years before he lodged a claim. There is no explanation for that delay.

40. Section 16(1) also requires that the employee must lodge a claim "within six months from the occurrence of the accident". Paragraph (ii) of the proviso in s 16(1) modifies this requirement by permitting consideration of a late claim if the failure to satisfy the requirement was occasioned by mistake, absence from Australia or other reasonable cause.

41. The concepts of mistake and other reasonable cause carry the same meanings here as they did in relation to giving notice of the accident.

42. The Applicant did not lodge his claim until 1998, well beyond the six months period prescribed. For the same reasons as applied to the failure to give notice as soon as practicable the Applicant fails the requirement as to making a claim.

43. Mr Elliott addressed s 7(4)(b) also and submitted that Mr Buttfield first suffered from an impairment, as defined by the 1988 Act, in 1965 when Dr Davies discovered a hearing deficiency, not in 1995 when his hearing ceased to function effectively, as was put by Ms Sharpe.

44. Ms Sharpe responded to Mr Elliott. She said that s 7(4)(a) of the 1988 Act is applicable because it hinges on when "the employee first sought medical treatment for the disease, or aggravation" [Tribunal's emphasis]. This requires more than a mere attendance by an employee. The definition of "medical treatment" in s 4(1) refers to "medical or surgical treatment", that is something more than a mere attendance. She submitted as before that the appropriate definition of "medical treatment" in Mr Buttfield's case is paragraph (f) of the definition in s 4(1), supply of a medical aid or appliance. Mr Elliott reiterated that treatment can involve simply attending at a doctor's surgery.

45. Ms Sharpe reiterated that there is no need to invoke the transitional provision, s 124(10) of the 1988 Act, if the Applicant satisfies s 7(4) of the 1988 Act. He would then have an injury under the 1988 Act if the date of onset is taken to be after 1 December 1988.

46. She questioned the Respondent's submissions on prejudice to the Commonwealth, observing that there is no sworn evidence from the Respondent. The evidence is from the Respondent's solicitor. Ms Sharpe quoted from the Tribunal decision Re Vickery and Commonwealth of Australia (unreported, AAT no 2251, 26 July 1985) where at page 18 Senior Member Hayes observed that it is the applicant who is usually prejudiced by a delay such as has occurred here:

"... there was no basis for the conclusion that the Commonwealth would be prejudiced by want of notice of claim within time. The only person who will be significantly prejudiced by the thirty-nine year gap between the alleged onset of injury and the making of a claim, will be the applicant himself. It will be for the applicant to bring forward facts which would have entitled him to compensation under the repealed Act. He will have to persuade the Commissioner that noise levels at the factory were sufficiently high, over a sufficiently long period of time, to cause or aggravate hearing problems. He will have to show that his work history prior to his employment with the respondent, and subsequent to its termination, was not such as to bring on the condition of which he now complains. It is difficult to conceive of the respondent's case being anything other than assisted by the gap between alleged injury at work and claim. Accordingly, therefore, on the evidence before the Tribunal, it is satisfied that the applicant has satisfied the terms of s. 16 of the repealed Act."

47. Mr Elliott responded by saying that Mr Stuart was the appropriate person to swear the affidavit that dealt with prejudice to the Respondent. It was not necessary for Comcare to attend and give evidence.

Findings on material questions of fact with reference to supporting evidence

48. It should be noted that these reasons have been prepared without access to a transcript of the hearing.

49. The primary legislation relevant to this application is the 1988 Act. The 1988 Act is the only Commonwealth compensation legislation currently in force, however in some of its provisions it provides for compensation payments to be made only if an employee would have been paid under an earlier repealed compensation Act such as the 1930 Act. A repealed Act can thereby become important in applying the 1988 Act.

50. The first issue to be dealt with is the Applicant's argument that the 1930 Act is irrelevant because the first day on which he sustained his injury, it being a disease, was a day after the commencement of the 1988 Act. Section 7(4) of the 1988 Act is relevant and has the following effects:

* The provision establishes when an employee will be taken to have sustained an injury in the form of a disease, or aggravation of a disease.

* One possibility is when the employee first sought medical treatment for the disease or aggravation.

* A second possibility is when the disease or aggravation resulted in the death of the employee.

* A third possibility is when the disease or aggravation first resulted in the incapacity for work of the employee.

* A fourth possibility is when the disease or aggravation first resulted in the impairment of the employee.

* Where more than one of the above events occurs, the day of the sustaining of the injury is to be the day when the first of those events occurred.

51. The Tribunal finds the following facts from the Applicant's evidence:

* The Applicant first became aware of his hearing loss when he saw Dr Davies in 1965 about a different condition, a sinus infection, and she conducted a hearing test. The Applicant could not recall whether he mentioned any hearing deficit to the doctor. She told him then, and he became aware, that he was substantially damaged in the 4,000-cycle range.

* In oral evidence the Applicant said he first connected his hearing loss to his work with the Authority in 1965.

* The Applicant said in evidence that he was aware of the option of seeking a hearing aid as early as 1965 but he did not want to pursue that option. He did not want to wear a hearing aid. He did not want to admit to being deaf.

* The Applicant has always been aware of his right to pursue compensation for his loss of hearing but his interest has always been in obtaining aids rather than cash compensation (Exhibit A2).

* He saw no other doctor about his hearing until he saw Dr Benjamin in 1990 to see if his hearing loss had worsened (Exhibit A2), although it seems he did see Dr Davies again in 1973 (T4). Dr Davies found no deterioration in the Applicant's condition since 1965. Dr Benjamin tested his hearing but there was no discussion about hearing aids. The Applicant did not feel he needed one.

* The Applicant became conscious that he had a problem between 1992 and 1994 when work colleagues drew to his attention that he had missed important information in meetings (Exhibit A2). Dr Scoppa described the onset of a perceptible problem differently in T4. Mr Buttfield had had a history of difficulty with hearing amidst background noise for as long as he can recall. He has great difficulty understanding conversation in groups such as when he attends cocktail parties. He gave a history of severe, bilateral, constant tinnitus for as long as he could recall.

* After he retired from work, on about 10 July 1995 he retained Hunt and Hunt, solicitors, who referred him to Dr Scoppa for a specialist's report (Exhibit A2). The Applicant said that he was advised in 1995 that he should apply for compensation to assist in paying for the hearing aid.

* Nothing further occurred until the Applicant saw Mr Russell, an audiometrist, in about August 1995 about obtaining treatment for his deafness. Mr Russell told him his case was a classic case of industrial deafness (Exhibits A2, A3). Mr Russell supplied the Applicant with two hearing aids. He found using both to be unsatisfactory and returned one of them.

* There was a further delay until 22 December 1998 when the Applicant's compensation claim was sent to the Respondent (T6). The Applicant explained that that delay was caused by the solicitors' attempts to retrace his employers (T6).

* In August 1999 the Applicant saw Mr Russell again (Exhibit A3). Mr Russell tested his hearing and provided quotes for two binaural hearing aids and one monaural hearing aid (Exhibit A3).

* Mr Buttfield swore in his affidavit of 16 December 1999 (Exhibit A2) that his "failure to give notice of [his] claim [was] due to lack of appreciation on [his] part as to the degree of [his] impairment, and his ... desire to obtain reimbursement for hearing aids, as opposed to monetary payment, for loss of hearing."

52. From that evidence, there are a number of options as to the date of onset of his disease under the 1988 Act.

1. It could have been 1961, the time when he ceased working for the Authority and the latest time by which any contribution stemming from his Authority work could have occurred.

2. It could have been 1965 when he was found by Dr Davies to have suffered hearing loss.

3. It could have been 1973 when Dr Davies re-examined him and found no further deterioration in his hearing.

4. It could have been 1990 when he saw Dr Benjamin to see whether his hearing had deteriorated further.

5. It could have been 1992-1994 when he discovered he was hard of hearing in meetings.

6. It could have been 1995 when he saw Mr Russell, the audiometrist and the provision of hearing aids became very much a live issue.

7. It could have been quite some years ago if one accepts Dr Scoppa's history of tinnitus and difficulty with background noise for as long as the Applicant can remember.

53. In considering the applicability of s 7(4)(a) of the 1988 Act, and referring back to the possibilities listed in paragraph 52 above, the Tribunal finds as follows:

* Mr Buttfield first sought medical treatment for the disease in 1973 when Dr Davies re-examined him and found no further deterioration in his hearing. It was not in 1965 when he first saw Dr Davies because he saw Dr Davies about a sinus infection. The Tribunal accepts the Applicant's evidence as regards his visit to Dr Davies in 1965. He accepted no treatment from Dr Davies at that time. However, when he saw Dr Davies in 1973 to inquire about possible deterioration in his hearing he must have been prompted to do so by problems he was experiencing, possibly the problems he described to Dr Scoppa. The clear inference is that he was concerned and wanted advice. It is difficult to see this as anything other than the seeking of "medical treatment" as described in paragraph (a) of the definition in s 4(1) of the 1988 Act. In returning to Dr Davies, Mr Buttfield submitted to medical treatment by a legally qualified medical practitioner. In the Tribunal's view, that treatment can take the form of the provision of advice and diagnosis by a legally qualified medical practitioner. It is not essential that there be surgery or prescription of medications or aids if the medical practitioner does not see them as required or if the patient rejects them.

* The possibility that arises under s 7(4)(b) based on the death of the employee has no application in this case.

* The possibility based on the onset of the Applicant's incapacity for work would also appear to have no application in this case. The Applicant is not seeking incapacity payments and he seems to have worked without any substantial impediment until he retired in 1995 at the age of 55.

* The possibility based on the impairment of the Applicant is difficult to apply in this case. The Applicant advanced it as a secondary argument. The suggestion was that the impairment did not emerge until some time in the 1990s when the full effects of the disease became patent. However, it is not necessary to resolve this issue because the Tribunal is satisfied that, whenever any impairment resulted, it was after the date on which the Applicant first sought medical treatment. Section 7(4) prescribes that the injury is taken to have been sustained when the first of these events occurred.

54. The Tribunal therefore finds that the disease commenced on the day in 1973 when Mr Buttfield saw Dr Davies.

55. This means that, under s 123A of the 1988 Act, the transitional provisions in the 1988 Act apply in this case. The Applicant has a pre-existing injury. To qualify for a compensation payment under the 1988 Act the Applicant must have qualified for a payment under the 1971 Act (s 124(1A)).

56. Section 124(10)(c) of the 1988 Act applies so that the Applicant is not entitled to compensation under the 1988 Act in respect of his injury if a claim under the 1971 Act in respect of an injury suffered after the commencement of the 1971 Act, but before 1 July 1986, was not admissible because of s 54 of the 1971 Act, as that section was in force before 1 July 1986.

57. It is necessary also to consider whether a notice as required by s 53 of the 1971 Act was served before 1 December 1988. If it was, then by s 126 of the 1988 Act that is taken to be a notice sufficient for the purposes of s 53 of the 1988 Act.

Has the Applicant satisfied s 53 of the 1971 Act?

58. Section 53(2) of the 1971 Act required an employee who contracted a disease to serve on the Commonwealth notice in writing of the contraction of the disease as soon as practicable after the employee became aware of contraction of the disease.

59. Section 53(4) of the 1971 Act deemed a notice to have been served in accordance with s 53(2) if a notice was actually served but it failed to comply with time or form requirements, provided that the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, or ignorance, from a mistake or any other reasonable cause.

60. In the present case no notice was served until the Applicant claimed compensation in a form received by Comcare on 4 January 1999 (T7). A claim form can also fulfil the role of a notice under s 53 of the 1971 Act. Comcare v Luck [1999] FCA 100; (1999) 29 AAR 403 is authority for this proposition in relation to the 1988 Act provisions. The provisions in the 1971 Act are largely similar and it would be strange if a different principle were to apply. There has, therefore, been a notice given under s 53(2) of the 1971 Act but it is deficient in not having been provided as soon as practicable.

61. It is necessary then to ascertain whether any of the exceptions in s 53(4) can apply in this case. The first of these is if there is no prejudice to the Commonwealth arising from the delay in notification.

62. The period of delay is lengthy in this case. It is some 26 years. The issue of prejudice has been well canvassed by both parties. The Applicant argues that he is more greatly prejudiced than the Commonwealth. He cites the decision in Vickery (supra) for this proposition. The Respondent, via an affidavit (Exhibit R2) set out the bases or prejudice accruing to the Commonwealth if this claim is entertained.

63. The Tribunal is inclined to prefer the Respondent's argument on this point. The facts in this case are very different from those in Vickery (supra) in that the Applicant did not work for the Authority on a consistent and lengthy basis. The Applicant did not complain to the Authority about his problems, as did the applicant in Vickery (supra). The applicant in Vickery (supra) was also relatively unsophisticated and unaware of his rights. The Applicant in this case admitted that he was not unaware of possible compensation entitlements. He is also a well educated, successful professional man with access to advice and the initiative to seek advice as required.

64. At the same time, the Tribunal is aware that the Authority is likely to have some difficulty resisting a claim made under beneficial legislation if it is unable to locate the type of information described in Exhibit R2. This is despite the onus of proof resting on the Applicant. The Tribunal therefore finds that the Respondent would be prejudiced if the notice in this case were to be treated as sufficient notice.

65. The excuse of the Applicant's death, another exception listed in s 53(4) is obviously inapplicable in this instance.

66. The excuse of any absence of the Applicant from Australia is not applicable in this case. It was not raised by either party as a possibility.

67. The excuse of the Applicant's ignorance is not applicable in this case. The Applicant admitted in Exhibit A2 that he has always been aware of his right to pursue compensation.

68. The excuse of the Applicant's mistake is not applicable in this case. There was no suggestion of any mistake on the Applicant's part.

69. The final issue under s 53(4) is whether there is any other reasonable cause for the lateness of the Applicant's notice. The thrust of the Applicant's evidence was that he did not claim earlier because, in essence, the compensation system had nothing to offer him. He made the conscious decision not to pursue obtaining a hearing aid because he did not want to wear one. He said he was not prepared to admit that he was deaf or, perhaps more accurately, hearing impaired. It is very probable that the Applicant would have gained nothing had he claimed incapacity payments, given that he seems to have enjoyed a long and successful career. Even now he is not seeking a payment in respect of a permanent impairment. His interest is solely in obtaining financial reimbursement for his hearing aids.

70. An earlier Tribunal case with some similarities is Re Australian Telecommunications Commission and Formoso (1985) 8 ALD 191 where the employee waited for two years to give notice and claim in respect of a work injury. In a statutory declaration he said that he told a workmate of the injury when it happened but he did not report the accident, hoping he would feel better later. At page 194, in paragraph 5, Senior Member Ballard held that this brought "the matter within the terms of 'other reasonable cause'". This was a decision in respect of the 1971 Act. Unfortunately the Senior Member did not give a full explanation as to why this explanation qualified as a reasonable cause. However, it would seem that the Tribunal was prepared to allow this explanation because it was a belief honestly held by the employee and the belief went to the core of what the compensation system is about, that is providing compensation to an employee who is injured in any relevant sense in connection with his or her employment, and who thereby suffers loss of income, or certain other losses. In Formoso (supra), if the employee had felt better later, his compensation entitlements would have reduced or disappeared.

71. This is to be compared to other cases where reluctance to notify or claim for fear of adverse employment consequences has been held not to be a reasonable cause. Examples are Banks v Comcare [1996] FCA 382 and Re Hanson and Comcare (1996) 41 ALD 639.

72. In the present case the Applicant's basis for not notifying or claiming earlier was that he thought he could survive with the hearing impairment causing him little difficulty in doing his work and conducting his life. He seems, like the employee in Formoso, to have underestimated the longer term seriousness of his disease. He believed he could operate without a hearing aid but had to change his mind as the hearing loss worsened. His decisions involve criteria going to the core of the compensation system and its rationale. The Applicant's "cause" seems to the Tribunal to have been "reasonable" in a relevant sense.

73. The Tribunal has therefore found that s 53(4) of the 1971 Act has been satisfied and the notice is deemed to have been served in accordance with s 53(2) of the 1971 Act.

Has the Applicant satisfied s 54 of the 1971 Act?

74. In order that compensation could be payable to an employee under s 54(1) of the 1971 Act the claimant had to serve a claim in writing on the Commissioner within six months commencing on the day on which the claimant became aware of the contraction of the disease (s 54(2)(b)). The Tribunal considers that these provisions mean that, in the present case, the Applicant would have had to serve his claim on the Commissioner by some time in 1973 or 1974. He did not do so until 1999.

75. Section 54(6) provides that a claim that has been served can be deemed to have been served as required by s 54(2), even though a claimant has not served a claim in accordance with the requirements of time or manner of service. The claimant needs to show that at least one of four criteria set out in s 54(6)(c) has been satisfied. These replicate the matters in s 53(4) which the Tribunal has already discussed. Of these, for reasons discussed earlier, the only applicable criterion would be that there was "any other reasonable cause". However, does the cause that was reasonable for not notifying of the disease also suffice for the delay in serving the claim?

76. In the Tribunal's view there is "any other reasonable cause" for the Applicant's delay in lodging the claim. The Tribunal applies the same reasoning as it did in relation to s 53(4)(c). However, as Mr Elliott pointed out, between the time in 1995 when the Applicant decided that he should obtain a hearing aid and the time when he lodged his claim, a lengthy period of over three years elapsed. In the Tribunal's view this is an additional factor to be taken into account in assessing whether the other cause is reasonable.

77. The Tribunal has noted the Applicant's explanation for that delay and a similar explanation given by his solicitor in T6. It is very credible that it took quite some effort and time to obtain the evidence in T3 of the Applicant's employment with the Authority. In the Tribunal's view this factor assists the Tribunal to find that the Applicant had other reasonable cause for the delay. Had the Applicant lodged his claim before finding this evidence it is likely that the claim would have been readily dismissed.

78. The Tribunal has therefore decided, by a circuitous route, that the Applicant's claim in respect of binaural hearing loss should be entertained by the Respondent.

2. to remit the matter to the Respondent with the direction that the Applicant's claim for compensation for binaural hearing loss meets the requirements of ss 53 and 54 of the Compensation (Commonwealth Government Employees) Act 1971 regarding late notice and claim and is to be admitted for consideration; and

3. to order the Respondent to pay the Applicant's costs of these proceedings in accordance with the General Practice Direction of the Tribunal.

I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member.

Signed: .....................................................................................